By: Sara Galloway

The leading legislation on copyright law in the United States, the Copyright Act of 1976, protects “original works of authorship.”[1]  Amidst the current artificial intelligence (“AI”) renaissance, creators are attempting to stretch the boundaries of what qualifies as an author.[2]  In Thaler v. Perlmutter,[3] a computer scientist sought to copyright an image generated by an AI program he created and listed the program as the sole author of the image on the copyright application. [4]  The Court of Appeals for the D.C. Circuit determined AI cannot be an author because the Copyright Act was created to protect human authors, not artificial intelligence machines.[5]

Creators have not been deterred, however, now attempting a more hands-on approach to AI-generated works they seek to copyright.[6] In an ongoing case in Colorado, Allen v. Perlmutter,[7] Jason Allen is trying to register an AI-generated piece of art with the Copyright Office.[8] He claims he created the work by inputting text prompts into the AI program to generate an image per his specifications; he tinkered with his instructions 624 times until he was satisfied with the final image.[9] The U.S. Copyright Office rejected his application and subsequent requests for reconsideration on the basis that the work contains AI-generated content that Allen cannot claim authorship of, and instructed him to disclaim portions of the work on his application.[10]  Allen refused the denials, likening the AI-generated photo to raw material he transformed through his artistic contributions; he states he merely used AI as a tool, thus making him the sole author and the entirety of the work copyrightable.[11]

This case highlights the ongoing struggle to define “authorship” in the digital age without clear statutory guidance: the Copyright Act of 1976 never explicitly defines the term “author.”[12]  Courts have found that AI cannot be an author itself, but to what degree can it aid authors as a tool in creating copyrightable work?[13]  When assessing AI-assisted works for copyright eligibility, the Copyright Office asks whether a human user can be considered the “creator” of the AI-generated output.[14] The inquiry focuses on who, or what, devised and implemented the traditional elements of authorship.[15]

The Copyright Office does not consider Allen as the author because his sole contribution to the AI-generated image was “inputting the text prompt that produced it.”[16]  In a recent report, the Copyright Office affirmed that copyright law only protects works created by humans, and that legal protection does not extend to AI-generated content based on text prompts.[17] Conversely, Allen thinks his case mirrors the Supreme Court case Burrow-Giles Lithographic Co. v. Sarony,[18] which established that photographs are eligible for copyright protection as works of authorship.[19]  Allen likens himself to the photographer in Sarony, who did not have complete control over his finished work, but made creative choices that influenced the final work, such as designing the backdrop, selecting the costume, positioning the subject, and arranging the lighting.[20]  Allen describes a similar process in dictating the artistic style, selecting the costuming, arranging the subjects, and choosing the setting for the image.[21] He went so far as to adjust the AI-generated work after each iteration of the image to ensure AI accurately portrayed his artistic vision.[22]

Copyright law promotes progress through providing legal and economic incentives for authors to create.[23]  AI generators are software-programmed to follow a user’s instructions and do not need these same incentives.[24] There is growing concern in the creative industry that providing legal protections to AI-generated content would, in turn, disincentivize humans to create and has the potential to “obliterate the markets for much human creation.”[25]  It would also disincentivize producers from hiring creative professionals because the costs of labor and time spent in the creative process are too great in comparison to quick turnaround times and low production costs associated with AI.[26]  AI-generated images would flood the market, drowning an entire industry of creative professionals.[27]

AI’s role in the creative industry only continues to grow.[28]  Factoring in the recent Thaler decision, creators will need to monitor AI use closely to ensure finished products are sufficiently created by humans to qualify as copyrightable material.[29]  Without proper documentation, creators might have a hard time proving they either did or did not use AI in the creation of digital art, which could make the difference in whether the artwork is granted copyright protection or not.[30]

 

[1] 17 U.S.C. § 102(a) (2012).

[2] See Scott Bomboy, Federal Court Rules Artificial Intelligence Machines Can’t Claim Copyright Authorship, Nat’l Const. Ctr. (Mar. 25, 2025), https://constitutioncenter.org/blog/federal-court-rules-artificial-intelligence-machines-cant-claim-copyright-authorship [https://perma.cc/CF8E-DHRV].

[3] Thaler v. Perlmutter, 130 F.4th 1039 (D.C. Cir. 2025).

[4] Id. at 1041.

[5] Id. (“The Creativity Machine cannot be the recognized author of a copyrighted work because the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being.”).

[6] See Emilio B. Nikolas, Federal Court Sides with Plaintiff in the First Major AI Copyright Decision of 2025, Jackson Walker: News (Feb. 17, 2025), https://www.jw.com/news/insights-federal-court-ai-copyright-decision/.

[7] Complaint at 3, Allen v. Perlmutter, No. 1:24-cv-2665 (D. Colo. Oct. 1, 2025) (Court Listener).

[8] Id.

[9] Id. at 5-6.

[10] Id. at 3.

[11] Letter from Suzanne V. Wilson et al., General Counsel and Associate Register of Copyrights, U.S. Copyright Office, to Tamara S. Pester, LLC, (Sep. 5, 2023) (on file with the U.S. Copyright Office) (quoting letter from Tamara Pester to U.S. Copyright Office, Jul. 12, 2023) (hereinafter “Letter”).

[12] See 17 U.S.C. § 102(a) (2012).

[13] See Stuart D. Levi, Jordan Feirman, & Mana Ghaemmaghami, Appellate Court Affirms Human Authorship Requirement for Copyrighting AI-Generated Works, Skadden (Mar. 21, 2025), https://www.skadden.com/insights/publications/2025/03/appellate-court-affirms-human-authorship (“Given the limited scope of [Thalen v. Perlmutter] to whether AI models themselves constitute “authors,” however, it is not likely to have significant impact on the thornier and more fact-specific questions regarding the degree to which human creativity reflected in AI-generated works may be copyrightable.”).

[14] Letter, supra note 11.

[15] Id. (listing traditional elements of authorship as literary, artistic, or musical expressions or elements of selection, arrangement, etc.).

[16] Id.

[17] U.S. Copyright Off., Copyright and A.I. Part 2: Copyrightability 18 (2025) (“The Office concludes that, given current generally available technology, prompts alone do not provide sufficient human control to make users of an AI system the authors of the output. Prompts essentially function as instructions that convey unprotectible ideas.”); Nathaniel L. Bach & Emily Whitely, Copyright Office Releases New Report on Copyrightability of AI Works, Manatt: Insights (Feb. 5, 2025), https://www.manatt.com/insights/newsletters/copyright-office-releases-new-report-on-copyrightability-of-ai-works (on file with the American University Business Law Review) (“While a prompt may describe an idea, the AI system ultimately determines the execution of the creative elements in ways that are not fully controlled by the user. The report highlights that AI does not simply follow instructions like a hired artist might, but instead interprets and generates content based on underlying algorithms and training data, making it difficult to attribute authorship to the human user.”).

[18] Brief for Petitioner at 22, Allen v. Perlmutter, No. 1:24-cv-2665 (D. Colo. Oct. 1, 2025) (Court Listener) (“The instant dispute is, in all relevant respects, an exact mirror of the one in Sarony. Neither Allen nor Sarony had complete control over their finished work, but both made creative choices that influenced their works.”); Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).

[19] See Burrow-Giles, 111 U.S. at 60 (“These findings . . . show this photograph to be an original work of art, the product of plaintiff’s intellectual invention, of which plaintiff is the author.”).

[20] See id. (“[P]laintiff made the same [photograph] entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit.”).

[21] See Complaint at 5, Allen v. Perlmutter, No. 1:24-cv-2665 (D. Co. Oct. 1, 2025) (Court Listener) (“He selected the colors, the style, and the era of the artwork, and arranged the elements in the image to represent the women dressed in elegant Victorian dresses performing opera on stage . . . He selected and arranged the elements to depict each performer wearing a space helmet . . . Plaintiff set the stage in a grand theater.”).

[22] See id. (“Plaintiff carefully reviewed these images. . . He then rephrased, added, or deleted portions of his instructions to clarify his vision.”).

[23] See U.S. Copyright Off., supra note 17, at 33.

[24] Id. at n.174 (“The artificial intelligence itself needs no incentive, as it is programmed to create, and needs only human prompting to generate works.”) (quoting Xiyin Tang et al.); Id. (“Computers don’t need incentives; only people do.”) (quoting Google LLC).

[25] See id. at 35 (quoting the Copyright Alliance).

[26] See id. (quoting the Authors Guild).

[27] See id. (“The creative middle class professions . . . will be drowned out and decimated.”).

[28] Elliot Moormann, AI and Copyright: What a Recent Court Ruling Means for AI Creators and Intellectual Property Rights, JDSupra (Apr. 3, 2025), https://www.jdsupra.com/legalnews/ai-and-copyright-what-a-recent-court-7442764/ [https://perma.cc/FJ2U-R8CL]; Kate Whiting, This is How AI is Impacting – and Shaping – the Creative Industries, According to Experts at Davos, World Econ. F. (Feb. 28, 2024) https://www.weforum.org/stories/2024/02/ai-creative-industries-davos/ [https://perma.cc/P8KC-N5HR].

[29] See Moormann, supra note 28.

[30] Id.